Delhi High Court
Court On Its Own Motion vs Dhanpat & Ors on 11 August, 2025
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 11th AUGUST, 2025
IN THE MATTER OF:
+ CRL.REV.P. 247/2017
COURT ON ITS OWN MOTION .....Petitioner
Through: Mr. Vivek Sood, Sr. Advocate
(Amicus Curiae), with Mr Amitanshu
Satyarthi, Ms Medhavi Judevi, Ms
Pankhuri Jain, Advocates.
versus
DHANPAT & ORS. .....Respondents
Through: Mr. Laksh Khanna, APP for the State.
Mr. H. S. Phoolka, Sr. Advocate with
Mr. Gurbaksh Singh, Ms. Surpreet
Kaur and Ms. Kamna Vohra,
Advocates for Complainant.
Mr. Bhaskar Vali and Mr. Tarun
Rajput, Advocates for Respondent
No.4/Ramji Lal.
Ms. Tarannum Cheema, Mr. Akash
Singh and Mr. Akshay N., Advs. for
CBI.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
JUDGMENT
SUBRAMONIUM PRASAD, J.
Background
1. The present Criminal Revision Petition was instituted in suo moto
exercise of powers under Section 401 of the Code of Criminal Procedure,
1973 (“CrPC“) pursuant to Order dated 29.03.2017 passed by this Court.
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This Court was prima facie satisfied of the untenability of the Judgment
dated 28.05.1986 passed by the Ld. Additional Sessions Judge, New Delhi
in Sessions Case 11/86 whereby four accused persons were acquitted in a
case of alleged arson and killing of one Harbhajan Singh, a Sikh, as part of
the pogrom which ensued in Delhi after the assassination of Ms. Indira
Gandhi, former Prime Minister of India in 1984.
Events leading to the institution of the present Revision Petition
2. As is evident from a perusal of the Order dated 29.03.2017, this Court
was considering the following appeals which had been filed challenging the
Judgment dated 30.04.2013 passed by the Ld. District & Sessions Judge,
North-East District, Karkardooma Courts, Delhi in Sessions Case 26/2010
(arising out of RC No. SI-1/2005/S0024):
a. Criminal Appeal No. 715/2013 titled „Mahender Yadav v. CBI‟
b. Criminal Appeal No. 753/2013 titled „Krishan Khokhar v. CBI‟
c. Criminal Appeal No. 831/2013 titled „Jagdish Kaur&Anr.v.
Balwan Khokhar & Ors.‟d. Criminal Appeal No. 851/2013 titled „Capt. Bhagmal Retd. v.
CBI‟e. Criminal Appeal No. 861/2013 titled „Balwan Khokhar v. CBI‟
f. Criminal Appeal No. 1099/2013 titled „State through CBI v.
Sajjan Kumar & Ors.‟g. Criminal Appeal No. 710/2014 titled „Girdhari Lal v. CBI‟
3. The aforesaid Criminal Appeals related to the incidents of killing of
five Sikhs in the Raj Nagar Part I area in Palam Colony in South West Delhi
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on 01/02.11.1984 and the burning down of a Gurudwara in Raj Nagar Part
II which were investigated by the Central Bureau of Investigation (“CBI”).
4. During the course of hearing of the aforesaid Criminal Appeals, Ld.
Counsel for some of the accused persons (Capt Bhagmal and Sajjan Kumar)
had sought to place reliance inter alia on the following Judgments passed by
Ld. Additional Sessions Judges, Delhi in:-
Sr. Case No. Name of the Parties Result of the Details of complaint
No trial
(i) SC State v. Vidyanand, Acquittal by Dated 15.11.1984 by Jagir
No.31/86 Balwan Khokhar, judgment dated Kaur (widow)
Mahender Singh Yadav 29.04.1986
(ii) SC State v. Dhanraj, Mahender Acquittal by Dated 18.11.1984 by
No.32/86 Singh, Balwan Khokhar, judgment dated Sampuran Kaur (widow)
Mahender Singh Yadav 17.05.1986
(iii) SC State v. Dhanpat, Ved Acquittal by Dated 15.11.1984 by
No.11/86 Parkash, Shiv Charan, judgment dated Swaran Kaur (widow)
Ramji Lal Sharma 28.05.1986
(iv) SC State v. Balwan Khokhar Acquittal by Dated 19.11.1984 by
No.10/86 judgment dated Daljit Kaur
15.07.1986
(v) SC No. State v. Mahender Singh, Acquittal by Dated 04.11.1984 by
33/86 Ram Kumar judgment dated Baljit Kaur (daughter)
04.10.1986 (registered as FIR 416/84)
5. The Ld. Counsel for the aforesaid accused persons sought to draw
strength from these Judgments of acquittal on the basis that the incidents
which formed the subject matter of these judgments as also the incidents
under consideration in the Criminal Appeals being heard, although arising
from different investigations, had taken place around the same time, i.e.
01/02.11.1984, in the aftermath of the assassination of Ms. Indira Gandhi.
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6. In order to appreciate the contentions of the Ld. Counsel for the
aforesaid accused persons, this Court deemed it fit to issue directions for
tracing out the records of the cases in which the Judgments of acquittal
tabulated above had been rendered.
7. Extracts of relevant Orders which indicate that the record of Sessions
Case 11/86, i.e., the subject matter of the present Revision Petition, was
traced out and placed before this Court are as under:-
a. Order dated 08.02.2017 in Criminal Appeal Nos. 715/2013,
753/2013, 831/2013, 851/2013, 861/2013, 1099/2013
&710/2014:
―…2. It would appear to be in the interest of justice
that the record of these cases is traced out. Further
directions with regard to the same would be made once
the parties had a chance to inspect the same.
3. A direction is issued to the District Judge
(Headquarters) to trace out the record of the cases and
cause the same to be produced before us within two
weeks from today. Even if the digitized record is
available, the same may be produced before us‖b. Order dated 21.02.2017 in Criminal Appeal Nos. 715/2013,
753/2013, 831/2013, 851/2013, 861/2013, 1099/2013 &
710/2014:
―…11. It appears therefore, that so far as the record of
the SC No.11/86 and SC No.28/93 were available as on
13th February, 2012. So far as the record of other
four cases are concerned, the same had been reported
to be weeded out.
12. In view of the above, a direction is issued to the
District Judge (Headquarters), to cause the record ofSignature Not Verified
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the SC No.11/86 and SC No.28/93 to be produced
before us forthwith.‖c. Order dated 16.03.2017 in Criminal Appeal Nos. 715/2013,
753/2013, 831/2013, 851/2013, 861/2013, 1099/2013 &
710/2014:
―…3. Pursuant to our orders dated 21st February,
2017 and 9th March, 2017 calling for the records of
these cases, only the record of SC No. 11/86 has been
sent to this court by the office of the District &
Sessions Judge (Headquarters).‖
8. After perusing the records and the Judgment dated 28.05.1986 in
Sessions Case 11/86, the judicial conscience of this Court was shocked on
account of the perfunctory manner in which investigation and trial were
conducted, compelling this Court to take suo moto cognizance.
9. Vide Order dated 29.03.2017, this Court while exercising its
jurisdiction under Section 401 CrPC, passed the following directions:-
―93. We accordingly direct as follows:-
(i) Let this order be registered as a petition under
Section 401 of the Cr.P.C.
(ii) Issue notice without process fee to the private
respondent nos. 1 to 4 as well as the State – respondent
no.5 to show cause as to why the judgment dated 28th
May, 1986 in SC No.11/86 premised on the composite
chargesheet dated 25th March, 1985 based inter alia
on the complaint dated 15th November, 1984 of Smt.
Swaran Kaur (clubbed with FIR No.416/84, P.S. Delhi
Cantt.), be not set aside and a retrial/fresh trial be
directed by this court in exercise of its revisional
powers under Section 401 of the Cr.P.C.
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(iii) Issue notice without process fee to private
respondent nos. 1 to 4 as well as the State – respondent
no.5 to show cause as to why this court not direct
fresh/further investigation into the complaint of Smt.
Swaran Kaur by an independent agency as the Central
Bureau of Investigation.
(iv) The address of the complainant – respondent no. 6
shall be ascertained by the State within two weeks from
today and the same shall be filed in the registry.
(v) Subject to the compliance with the above directions,
court notice without process fee shall be issued for the
service of complainant – respondent no. 6.
(vi) Compliance with the above directions shall be got
ensured by the Commissioner, Delhi Police.
(vii) A copy of the composite final report dated 25th
March, 1985 filed by the Delhi Police in SC Nos.10/86,
11/86, 31/86, 32/86 and 33/86 (placed by CBI on the
record of Crl.A.No.1099/2013) and a copy of the
judgment dated 28th May, 1986 in SC No.11/86 shall
be placed in the file along with the present order.
(viii) For the reasons set out above, we appoint Mr.
Vivek Sood, Sr. Advocate as Amicus Curiae in this
matter.
(ix) The Registry shall ensure that a complete paper
book is made available to the Amicus Curiae.
(x) It shall be the responsibility of the Delhi High
Court Legal Services Committee to pay the fees of the
Amicus Curiae which are quantified at `50,000/-.
(xi) All notices shall be returnable on 20th April,
2017.‖Signature Not Verified
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Challenge before the Apex Court
10. Order dated 29.03.2017, leading to the institution of Criminal
Revision Petition 246/2017, i.e., one of the connected matters, was
challenged before the Apex Court by Mahender Singh Yadav, one of the
accused in Sessions Case 31/86 (giving rise to Criminal Revision Petition
246/2017), by filing Special Leave Petition (Crl.) 3928/2017. The aforesaid
matter is pending before the Apex Court since 2017. Even though no
Order(s) staying the present proceedings were passed, the present matters
remained pending, awaiting the outcome of proceedings in the Apex Court.
11. The Petitioner in Special Leave Petition (Crl.) 3928/2017, namely,
Mahender Singh Yadav, i.e.one of the accused in SC 31/1986, had passed
away during the pendency of the SLP, as recorded by this Court in Order
dated 21.11.2023.
12. As such, since Mahender Singh Yadav, i.e. the Petitioner in Special
Leave Petition (Crl.) 3928/2017, has passed away, and there was no Order of
the Apex Court directing this Court not to proceed further with the hearing
of the batch of Criminal Revision Petitions, including the present case, this
Court has heard the parties as well as the Amicus Curiae.
Facts of Sessions Case 11/86
13. One Swaran Kaur (“Complainant”), widow of late Harbhajan Singh,
who was residing at RZ-439F, Raj Nagar, New Delhi gave a Written
Complaint dated 13.11.1984 [Exhibit PW2/A] to the SHO, Sadar Bazar, PS
Delhi Cantonment on 15.11.1984. In her Complaint, she stated that on
01.11.1984 at about 10:00 AM, certain persons had attacked and set her
husband and her house on fire, resulting in his death. The Complainant
stated that she knew the persons who participated in the incident andSignature Not Verified
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identified them as Shiv Charan, Dhanpat Kumar and his brother, one Goel
residing behind her house, Ramji Lal Sharma, Bal Kishan, Surinder of
Village Bagdola etc.
14. This Complaint was investigated as a part of FIR 416/1984 dated
04.11.1984 which had already been registered at PS Delhi Cantonment on
the complaint of one Baljeet Kaur D/o late Avtar Singh.
15. Investigation was conducted by PW4 SI Arjun Singh and PW3 SI
Ashok Kumar Saxena. Upon conclusion of investigation, a composite
Chargesheet was filed which adverted to five such cases of alleged targeted
killing of Sikhs in the Raj Nagar area on 01/02.11.1984. The portion of the
composite Chargesheet dealing with the Complaint of Swaran Kaur was
labelled as Challan IV. Five persons were arrayed as accused, namely Shiv
Charan, Dhanpat, Ved Prakash, Ramji Lal Sharma and Surendra (who was
declared as a Proclaimed Offender) for the alleged killing of Harbhajan
Singh, i.e. husband of Swaran Kaur.
16. The composite Chargesheet gave rise to five trials – Sessions Case
10/86, Sessions Case 11/86, Sessions Case 31/86, Sessions Case 32/86 and
Sessions Case 33/86. In the present Revision Petition, we are concerned with
Sessions Case 11/1986.
17. Charges under Sections 201, 302, 392, 436, 449 read with Section 149
of the Indian Penal Code, 1860 (“IPC“) were framed on 21.03.1986 against
the accused persons who faced trial, viz. Dhanpat, Ved Prakash, Shiv Charan
and Ramji Lal Sharma.
18. During the course of trial, the Prosecution examined the following
witnesses:
a. PW1 – ASI Maha Singh (Scribe of FIR 416/1984)
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b. PW2 – Swaran Kaur (Complainant)c. PW3 – SI AK Saxena (IO)
d. PW4 – SI Arjun Singh (IO)
e. PW5 – Inspector Sita Ram (Police Witness to Written
Complaint dated 15.11.1984 made by Swaran Kaur).
19. After conclusion of Prosecution evidence, accused persons were
examined under Section 313 CrPC, who denied the allegations against them.
20. The Ld. Additional Sessions Judge, New Delhi vide Judgment dated
28.05.1986 in Sessions Case 11/86 acquitted all the four accused persons on
the basis that:-
a. There was a contradiction insofar as PW2 Swaran Kaur had, in her
Written Complaint [Exhibit PW2/A], stated that the incident had
occurred at her own house, whereas, while deposing before the
Ld. Additional Sessions Judge she had claimed that the incident
took place at the house of her neighbour, one Mr. Thakur.
b. There was substantial delay in reporting the incident inasmuch as
the occurrence was of 01.11.1984, whereas the Written Complaint
[Exhibit PW2/A] was only given on 15.11.1984.
c. The deposition of PW2 Swaran Kaur had not been corroborated
by any other witness.
d. There was prior enmity between the deceased and the accused
persons on account of disputes regarding accounts of the Mohalla
Samiti.
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Appointment of various Commissions & investigation of incidents
which took place during the 1984 Riots
21. It is pertinent to mention that in the aftermath of the assassination of
Ms. Indira Gandhi, former Prime Minister of India, large scale violence took
place in Delhi. Members of Sikh community were killed and their properties
were ransacked. Several Commissions were appointed by the Government
of India to examine different aspects of the matter, including (i) the Marwah
Commission (1984), (ii) the Justice Ranganath Misra Commission of
Enquiry (1985), (iii) the Dhillon Committee (1985), (iv) the Ahuja
Committee (1985), (v) the Kapur Mittal Committee (1987), (vi) the Jain
Banerjee Committee (1987), (vii) the Potti Rosha Committee (1990), (viii)
the Jain Aggarwal Committee (1990), and (ix) the Narula Committee
(1993).
22. There were several complaints of shoddy investigation which led to
the constitution of a Commission of Inquiry headed by Justice G.T.
Nanavati, former Judge of the Supreme Court of India, i.e., the “Nanavati
Commission”, to inquire into the causes, and the course of criminal
violence targeting members of the Sikh community which took place in the
NCT of Delhi and other parts of India on 31.10.1984 and thereafter; the
sequence of events leading to and all such facts relating to such violence and
riots. The Commission also covered questions as to whether the crimes
which were committed against the Sikh community could have been averted
and whether there were any lapses or dereliction of duty on the part of the
Police Officials and other authorities. The Commission was also to inquire
and report on the adequacy of administrative measures taken to prevent andSignature Not Verified
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deal with the said violence and riots and certain other matters as may be
found relevant in the course of the inquiry.
23. The Nanavati Commission of Inquiry gave its Report on 09.02.2005,
which was placed before both Houses of Parliament. Before the Parliament,
an assurance was given by the then Prime Minister and the Home Minister
that wherever the Commission has named any specific individuals which
would require further examination or re-opening of cases, steps will be taken
to do so within the ambit of law.
24. After examination of the matter, a Communication dated 24.10.2005,
was issued by the Ministry of Home Affairs for investigation/re-
investigation of cases against Dharam Das Shastri, Jagdish Tytler and Sajjan
Kumar for their role in the various cases/actions and the cases were
entrusted to the Central Bureau of Investigation (CBI). Consequently, the
CBI registered an FIR vide RC24/2005-SIU-I/SIC-1/CBI/ND.
25. Upon conclusion of investigation, Chargesheet No.1/10 dated
13.01.2010 was filed against eight accused persons, namely, Sajjan Kumar,
Balwan Khokhar, Mahender Yadav, Capt. Bhagmal (Retd.), Girdhari Lal,
Krishan Khokhar, Maha Singh and Santosh Rani @ Janta Hawaldarni. The
case was registered as Sessions Case 26/2010. Since some of the accused,
namely, Ishwar Chand Gaur @ Chand Sharabi, Dharamveer Singh Solanki,
Balidan Singh and Raja Ram, had passed away before the trial, proceedings
against them stood abated, and charges were framed against the surviving
accused persons.
26. Vide Judgment dated 30.04.2013, the learned Additional District &
Sessions Judge, Karkardooma acquitted Sajjan Kumar while the other five
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accused persons were convicted for commission of different offences, which
resulted in filing of the following appeals before this Court:
a. Criminal Appeal No. 715/2013 titled „Mahender Yadav v. CBI‟
b. Criminal Appeal No. 753/2013 titled „Krishan Khokhar v. CBI‟
c. Criminal Appeal No. 831/2013 titled „Jagdish Kaur &Anr. v.
Balwan Khokhar & Ors.‟d. Criminal Appeal No. 851/2013 titled „Capt. Bhagmal Retd. v.
CBI‟e. Criminal Appeal No. 861/2013 titled „Balwan Khokhar v. CBI‟
f. Criminal Appeal No. 1099/2013 titled „State through CBI v.
Sajjan Kumar & Ors.‟g. Criminal Appeal No. 710/2014 titled „Girdhari Lal v. CBI‟
27. It is pertinent to note that the CBI investigation and the resultant trial
pertained inter alia to:-
a. the larger conspiracy resulting in the incidents which took place
on 01/02.11.1984 in the Raj Nagar area;
b. the murders of five Sikh persons (Kehar Singh, Gurpreet Singh,
Raghuvinder Singh, Narender Pal Singh & Kuldeep Singh);
c. damage caused to the Raj Nagar Gurudwara.
28. The CBI case did not pertain to the alleged murder of Harbhajan
Singh, which was the subject matter of Sessions Case 11/86, presumably on
account of acquittal of the accused persons in the said case vide Judgment
dated 28.05.1986, which were not followed up with any appeals on behalf of
the State or the victims.
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Submissions of Amicus Curiae
29. Learned Amicus Curiae has taken this Court through the Written
Complaint [Exhibit PW2/A] as also the deposition of PW2 Swaran Kaur to
contend that there is no discrepancy at all regarding the place of the incident.
He points out that it has been stated in the Written Complaint [Exhibit
PW2/A] that the Complainant‟s husband was attacked and burnt alive. In her
deposition before the Ld. Additional Sessions Judge, the Complainant has
elaborated to state that they had taken shelter in the house of their neighbour
one Mr. Thakur after the mob had arrived, and that the incident took place
there. He states that there is nothing to show that the Complainant, in her
Written Complaint [Exhibit PW2/A], had alleged that the incident took place
at her residence, as opposed to the house of her neighbour, Mr. Thakur. As
such, he submits, that there is no contradiction.
30. He further states that the testimony of PW2 Swaran Kaur is
unimpeachable. She had identified the accused persons in the Court. He also
states that just because some questions were put regarding differences of
opinion in connection with some accounts, the same would not be sufficient
to disbelieve the entire testimony of PW2 Swaran Kaur.
31. He further states that the incident resulted in large scale violence,
devastation of property, and displacement of affected persons. He states that
the Complainant had left Delhi, having lost her husband and her place of
residence. She had to initially take shelter in relief camps and later shift to
Chandigarh. As a result, she was only able to lodge the Written Complaint
on 15.11.1984 after getting it drafted whilst she was taking shelter in the
relief camp. He submits that the delay of fourteen days in lodging the
Written Complaint, which is dated 13.11.1984, has to be appreciated in this
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backdrop, and from that angle is duly explained by PW2 Swaran Kaur in her
deposition. He states that the conclusion arrived at by the Ld. Additional
Sessions Judge of acquitting the accused is totally perverse, and deserved to
be set aside.
Submissions on behalf of Ramji Lal Sharma
32. Per contra, Ld. Counsel for the sole surviving accused Ramji Lal
Sharma, supports the Judgment of the Ld. Additional Sessions Judge. He
states that the statements about the attack, identities of the accused, have
been inconsistent and there is a contradiction regarding the location of the
incident. An attempt has been made by the Ld. Counsel for the accused to
contend that in the Written Complaint [Exhibit PW2/A] it is stated that the
incident took place at her house whereas in the deposition in Court, it is
stated that the incident took place in the house of one Mr. Thakur. He states
that Mr. Thakur and his wife have not been examined. He also states that in
the absence of any corroboration of the Complainant, the ipse dixit of the
Complainant cannot be accepted. He states that a case of conviction cannot
be made only on the basis of an uncorroborated version of the sole witness.
33. Ld. Counsel for the accused further states that the Respondent No. 4/
Ramji Lal Sharma was not subjected to any investigation by the CBI in any
other case(s), and that he has only been roped in, in the present case. He
states that the Investigating Officers are not available anymore. He further
states that no useful purpose would be served in remanding the matter back
to the Trial Court or directing any further re-investigation/fresh
investigation.
Analysis:-
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34. This Court has heard Mr. Vivek Sood, Ld. Senior Counsel and Amicus
Curiae, Mr. Bhaskar Vali, Ld. Counsel for the sole surviving accused, i.e.
Respondent No.4 Ramji Lal Sharma, and Mr. HS Phoolka, Ld. Senior
Counsel. This Court has also perused the material available on record,
including the record of Sessions Case 11/86, which includes:-
a. Composite Chargesheet dated 25.03.1985 (including Challan
IV pertaining to PW2 Swaran Kaur‟s Complaint)b. FIR 416/1984 dated 04.11.1984 [Exhibit PW1/A]
c. Written Complaint dated 13.11.1984 (submitted on 15.11.1984)
by PW2 Swaran Kaur [Exhibit PW2/A]d. Search-sum-Seizure Memoranda drawn up at the time of arrest
of accused persons [Exhibits PW3/A, PW3/B & PW3/C]e. Site Plan [Exhibit PW3/E]
f. Depositions of Prosecution Witnesses [PWs 1-5]
g. Statements of accused persons recorded under Section 313
CrPCh. Judgment dated 28.05.1986 passed by the Ld. Additional
Sessions Judge, New Delhi in Sessions Case 11/86
35. Even though this Court has not been able to peruse the statements
recorded by the Investigating Agency under Section 161 of the CrPC, but
that alone need not deter this Court from proceeding ahead by exercising its
jurisdiction under Section 401 of the CrPC. Since „vitally important basic
records‟ a phrase employed by the Apex Court in State of U.P v. Abhai Raj
Singh & Anr., (2004) 4 SCC 6, of Sessions Case 11/86 are available before
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this Court, and the same reveal several manifest errors of law, as noted
hereinbelow, this Court is proceeding with consideration of the matter.
36. Since three out of the four accused persons tried and acquitted have
passed away, proceedings against them stand abated. The consideration and
findings in the present case are limited insofar as the case of the sole
surviving accused, i.e. Respondent No. 4/Ramji Lal Sharma, is concerned.
37. During the course of the present proceedings, the Complainant, i.e.
Respondent No. 6 / PW2 Swaran Kaur, was traced out, and was reportedly
residing in Chandigarh, as recorded in Order dated 11.07.2017.
Regarding purported contradiction in the version of PW2 Swaran Kaur
38. The Written Complaint [Exhibit PW2/A] dated 13.11.1984 is
available before this Court. In the Complaint, PW2 Swaran Kaur has stated
that she resides at F-439, RZ- Raj Nagar, Palam Colony, New Delhi. It is
stated that on 01.11.1984 at about 10:00 AM, certain persons attacked and
burnt her husband and her house. In the complaint, she identified Shiv
Charan, Dhanpat Kumar and his brother, one Goel, who stayed behind her
house, Ramji Lal Sharma, Bal Kishan, Surinder of Village Bagdola and
others.
39. In her deposition, she has elaborated as to how the incident took place
and has stated that a mob of about 2000-2500 people attacked her house, on
account of which she and her husband along with their children went to the
neighbouring house of Mr. Thakur for protection. It is stated that her house
was set on fire, whereafter they went to the house of Mr. Thakur. The mob
broke open the doors of the house of Mr. Thakur, where they had taken
shelter. The Complainant and her children were pushed aside by the mob.
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Thereafter, the persons in the mob blackened the face of her husband, cut his
hair and set him on fire.
40. The substratum of acquittal of the accused persons by way of the
Judgment dated 28.05.1986 under consideration is that there is a major
contradiction between the version proffered by PW2 Swaran Kaur in her
Written Complaint [Exhibit PW2/A] and her deposition before Court.
41. Having perused the record of Sessions Case 11/86, this Court is
consciously refraining from expressing any opinion on facts in respect of the
purported contradiction. Even if one were to assume that such contradiction
did exist, the same has not been „duly proved‟ in accordance with the
procedure prescribed in Section 145 of the Evidence Act. A bare perusal of
the deposition of PW2 Swaran Kaur reveals that her attention was not drawn
by the Ld. Defence Counsel to the purportedly contradictory portion from
her previous version [Exhibit PW2/A], nor were such portions marked out.
At no point of time was PW2 Swaran Kaur called upon during cross
examination to explain such contradiction.
42. The Apex Court in V K Mishra v. State of Uttarakhand, (2015) 9
SCC 588, while examining the provisions of Section 145 of the Evidence
Act, has observed as under:
―16. Section 162 CrPC bars use of statement of
witnesses recorded by the police except for the limited
purpose of contradiction of such witnesses as indicated
there. The statement made by a witness before the
police under Section 161(1) CrPC can be used only for
the purpose of contradicting such witness on what he
has stated at the trial as laid down in the proviso to
Section 162(1) CrPC. The statements under Section
161 CrPC recorded during the investigation are not
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primarily for the limited purpose: (i) of contradicting
such witness by an accused under Section 145 of the
Evidence Act; (ii) the contradiction of such witness
also by the prosecution but with the leave of the Court;
and (iii) the re-examination of the witness if necessary.
17. The court cannot suo motu make use of statements
to police not proved and ask questions with reference
to them which are inconsistent with the testimony of the
witness in the court. The words in Section 162 CrPC
―if duly proved‖ clearly show that the record of the
statement of witnesses cannot be admitted in evidence
straightaway nor can be looked into but they must be
duly proved for the purpose of contradiction by
eliciting admission from the witness during cross-
examination and also during the cross-examination of
the investigating officer. The statement before the
investigating officer can be used for contradiction but
only after strict compliance with Section 145 of the
Evidence Act that is by drawing attention to the parts
intended for contradiction.
18. Section 145 of the Evidence Act reads as under:
―145.Cross-examination as to previous statements
in writing.–A witness may be cross-examined as
to previous statements made by him in writing or
reduced into writing, and relevant to matters in
question, without such writing being shown to
him, or being proved; but, if it is intended to
contradict him by the writing, his attention must,
before the writing can be proved, be called to
those parts of it which are to be used for the
purpose of contradicting him.‖
19.Under Section 145 of the Evidence Act when it is
intended to contradict the witness by his previous
statement reduced into writing, the attention of such
witness must be called to those parts of it which are to
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be used for the purpose of contradicting him, before
the writing can be used. While recording the deposition
of a witness, it becomes the duty of the trial court to
ensure that the part of the police statement with which
it is intended to contradict the witness is brought to the
notice of the witness in his cross-examination. The
attention of witness is drawn to that part and this must
reflect in his cross-examination by reproducing it. If
the witness admits the part intended to contradict him,
it stands proved and there is no need to further proof of
contradiction and it will be read while appreciating the
evidence. If he denies having made that part of the
statement, his attention must be drawn to that
statement and must be mentioned in the deposition. By
this process the contradiction is merely brought on
record, but it is yet to be proved. Thereafter when
investigating officer is examined in the court, his
attention should be drawn to the passage marked for
the purpose of contradiction, it will then be proved in
the deposition of the investigating officer who again by
referring to the police statement will depose about the
witness having made that statement. The process again
involves referring to the police statement and culling
out that part with which the maker of the statement was
intended to be contradicted. If the witness was not
confronted with that part of the statement with which
the defence wanted to contradict him, then the court
cannot suo motu make use of statements to police not
proved in compliance with Section 145 of the Evidence
Act that is, by drawing attention to the parts intended
for contradiction.‖
(Emphasis supplied)
43. Similarly, in State of UP v. Anil Singh, 1988 (Supp) SCC 686, the
Apex Court has held as under:-
―19. It was argued by Shri Frank Anthony, learned
Senior Counsel for the accused that it would be
impossible for any person to prepare such anSignature Not Verified
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exhaustive report and lodge the same before the police
so soon after the occurrence. According to counsel, the
report must have been prepared after the inquest and
non-mentioning of the time of despatch of FIR to the
court would lend support to his submission. We
carefully examined the material on record. We are
unable to accept the submission of learned counsel. In
the first place, PW 1 was not specifically cross-
examined on this matter. The court cannot therefore,
presume something adverse to the witness unless his
attention is specifically drawn to it. Secondly, the
records contain unimpeachable evidence to the
contrary. Apart from the records of the police station,
the Panchnama (Ex. Ka. 7) to which Ramesh Chandra
Dube (DW 1) has admittedly appended his signature
shows that the reporting time of the crime was 9.15
p.m. DW 1 accompanied Prahlad Kumar to police
station to lodge the report though he later defected to
the defence. He is a political figure and social worker.
Highly qualified too. He would not have signed the
panchnama if the statements therein were not true and
correct.‖
(Emphasis supplied)
44. In the absence of such steps, the Ld. Additional Sessions Judge fell in
grave error in concluding that – (a) a contradiction existed; and (b) it was
material enough to impeach her entire testimony.
Regarding purported delay in lodging Complaint
45. The other basis on which the Ld. Additional Sessions Judge
proceeded to acquit the accused persons was on account of the purported
delay in lodging the complaint. In that regard, ex facie the Court failed to
factor in the precarious situation and communal tensions which existed in
the aftermath of the assassination of Ms. Indira Gandhi, and the ensuing
riots and violence against members of the Sikh community. A bare perusal
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of the deposition of PW2 Swaran Kaur reflects that, after having lost her
husband, she had to take shelter with her children in relief camps after her
house was burnt in the attack on 01.11.1984. Only after finding shelter and
coming to terms with the loss of her husband as well as her place of abode,
was she in a position to get her Written Complaint [Exhibit PW2/A] dated
13.11.1984 drafted from the relief camp. The Written Complaint [Exhibit
PW2/A] appears to have been given to PS Delhi Cantonment on 15.11.1984.
At present, this Court is again consciously refraining from expressing any
conclusive finding of fact on this aspect.Reference, however, can be made to
the decision of the Apex Court in Ravinder Kumar v. State of Punjab
[(2001) 7 SCC 690] which discusses the impact of delayed lodging of
complaints and the manner in which a plea on that ground ought to be
considered by a Court:
―…13. The attack on prosecution cases on the ground
of delay in lodging FIR has almost bogged down as a
stereotyped redundancy in criminal cases. It is a
recurring feature in most of the criminal cases that
there would be some delay in furnishing the first
information to the police. It has to be remembered that
law has not fixed any time for lodging the FIR. Hence a
delayed FIR is not illegal. Of course a prompt and
immediate lodging of the FIR is the ideal as that would
give the prosecution a twin advantage. First is that it
affords commencement of the investigation without any
time lapse. Second is that it expels the opportunity for
any possible concoction of a false version. Barring
these two plus points for a promptly lodged FIR the
demerits of the delayed FIR cannot operate as fatal to
any prosecution case. It cannot be overlooked that
even a promptly lodged FIR is not an unreserved
guarantee for the genuineness of the version
incorporated therein.
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14.When there is criticism on the ground that FIR in a
case was delayed the court has to look at the reason
why there was such a delay. There can be a variety of
genuine causes for FIR lodgment to get delayed. Rural
people might be ignorant of the need for informing the
police of a crime without any lapse of time. This kind
of unconversantness is not too uncommon among
urban people also. They might not immediately think of
going to the police station. Another possibility is due to
lack of adequate transport facilities for the informers
to reach the police station. The third, which is a quite
common bearing, is that the kith and kin of the
deceased might take some appreciable time to regain a
certain level of tranquillity of mind or sedativeness of
temper for moving to the police station for the purpose
of furnishing the requisite information. Yet another
cause is, the persons who are supposed to give such
information themselves could be so physically impaired
that the police had to reach them on getting some
nebulous information about the incident.
15. We are not providing an exhaustive catalogue of
instances which could cause delay in lodging the FIR.
Our effort is to try to point out that the stale demand
made in the criminal courts to treat the FIR vitiated
merely on the ground of delay in its lodgment cannot
be approved as a legal corollary. In any case, where
there is delay in making the FIR the court is to look at
the causes for it and if such causes are not attributable
to any effort to concoct a version no consequence shall
be attached to the mere delay in lodging the FIR.‖
(Emphasis supplied)
Regarding prior enmity between the Deceased and accused persons
46. The Ld. Additional Sessions Judge appears to have treated the factum
of certain quarrels between Harbhajan Singh (deceased) and the accused
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persons over accounts of Mohalla Samiti as a basis for false implication of
the accused persons. It is trite law that a plea of false implication on account
of prior enmity cannot lead to acquittal if the evidence reveals commission
of an offence.
Regarding lack of corroboration of testimony of PW2 Swaran Kaur
47. Finally, the last basis on which the Ld. Additional Sessions Judge
proceeded to pass a Judgment of acquittal was on account of the fact that the
testimony of PW2 Swaran Kaur had not been corroborated by any other
witness(es). Prima facie, this Court is of the view that there is no bar in law
in basing a conviction on the testimony of a sole eyewitness if the same
inspires confidence, as what the Court is concerned with is not the quantity
of witnesses on a particular point but the quality of the deposition.
48. This aspect of the present case also raises serious questions on
whether a proper and thorough investigation was conducted in the present
case by the Investigating Agency. From the record of Sessions Case 11/86, it
appears that sufficient efforts were not made to associate all natural
witnesses during investigation, including the children of the deceased who
were present at the time of the incident, and/or any neighbours, including the
persons in whose house the Complainant and her family had taken shelter
after the mob had burnt their house down. It was on account of this position
that this Court was constrained to observe as under in its Order dated
29.03.2017:-
―…85. A perusal of the above composite chargesheet /
final report under Section 173 of the Cr.P.C. dated 25 th
March 1985 would show that the bare essential
requirements of an investigation into any of the
complaints do not appear to have been carried out
before its filing…No effort was made to trace out theSignature Not Verified
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dead bodies or the stolen materials. No statement of
the eye-witnesses, including relatives or any other
neighbours or other public persons who may have been
present has been recorded. To say the least, the bare
notions of investigation do not seem to have been
carried out before the challan has been filed.
*****
87.The prosecutors also appear to have completely
abdicated their duties and have not assisted the trial
courts nor ensured that the truth was brough out,
guilty convicted and serious crimes punished. The
prosecutions were launchedwithout any effort at
ensuring that investigations were honestly complete
and that culpability could be fixed.‖
(Emphasis supplied)
49. Even the Ld. Additional Sessions Judge, New Delhi clearly failed in
his duty to ensure that the defects in investigation were rectified by
appropriate directions inter alia of further investigation. We may make
reference to the decision of the Apex Court in Zahira Habibulla H Sheikh &
Anr. v. State of Gujarat & Ors., (2004) 4 SCC 158, in this regard insofar as
it was observed that:-
―43. The courts have to take a participatory role in a
trial. They are not expected to be tape recorders to
record whatever is being stated by the witnesses.
Section 311 of the Code and Section 165 of the
Evidence Act confer vast and wide powers on presiding
officers of court to elicit all necessary materials by
playing an active role in the evidence-collecting
process. They have to monitor the proceedings in aid of
justice in a manner that something, which is not
relevant, is not unnecessarily brought into record.
Even if the prosecutor is remiss in some ways, it can
control the proceedings effectively so that the ultimateSignature Not Verified
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objective i.e. truth is arrived at. This becomes more
necessary where the court has reasons to believe that
the prosecuting agency or the prosecutor is not acting
in the requisite manner. The court cannot afford to be
wishfully or pretend to be blissfully ignorant or
oblivious to such serious pitfalls or dereliction of duty
on the part of the prosecuting agency. The prosecutor
who does not act fairly and acts more like a counsel for
the defence is a liability to the fair judicial system, and
courts could not also play into the hands of such
prosecuting agency showing indifference or adopting
an attitude of total aloofness.
44. The power of the court under Section 165 of the
Evidence Act is in a way complementary to its power
under Section 311 of the Code. The section consists of
two parts i.e. : (i) giving a discretion to the court to
examine the witness at any stage, and (ii) the
mandatory portion which compels the court to examine
a witness if his evidence appears to be essential to the
just decision of the court. Though the discretion given
to the court is very wide, the very width requires a
corresponding caution. In Mohanlal v. Union of
India [1991 Supp (1) SCC 271 : 1991 SCC (Cri) 595]
this Court has observed, while considering the scope
and ambit of Section 311, that the very usage of the
words such as, ―any court‖, ―at any stage‖, or ―any
enquiry or trial or other proceedings‖, ―any person‖
and ―any such person‖ clearly spells out that the
section has expressed in the widest-possible terms and
do not limit the discretion of the court in any way.
However, as noted above, the very width requires a
corresponding caution that the discretionary powers
should be invoked as the exigencies of justice require
and exercised judicially with circumspection and
consistently with the provisions of the Code. The
second part of the section does not allow any
discretion but obligates and binds the court to take
necessary steps if the fresh evidence to be obtained is
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essential to the just decision of the case, ―essential‖ to
an active and alert mind and not to one which is bent
to abandon or abdicate. Object of the section is to
enable the court to arrive at the truth irrespective of
the fact that the prosecution or the defence has failed
to produce some evidence which is necessary for a just
and proper disposal of the case. The power is exercised
and the evidence is examined neither to help the
prosecution nor the defence, if the court feels that there
is necessity to act in terms of Section 311 but only to
subserve the cause of justice and public interest. It is
done with an object of getting the evidence in aid of a
just decision and to uphold the truth.
*****
55. The courts, at the expense of repetition we may
state, exist for doing justice to the persons who are
affected. The trial/first appellate courts cannot get
swayed by abstract technicalities and close their eyes
to factors which need to be positively probed and
noticed. The court is not merely to act as a tape
recorder recording evidence, overlooking the object of
trial i.e. to get at the truth. It cannot be oblivious to the
active role to be played for which there is not only
ample scope, but sufficient powers conferred under the
Code. It has a greater duty and responsibility i.e. to
render justice, in a case where the role of the
prosecuting agency itself is put in issue and is said to
be hand in glove with the accused, parading a mock
fight and making a mockery of the criminal justice
administration itself.
56. As pithily stated in Jennison v. Baker [(1972) 1 All
ER 997 : (1972) 2 QB 52 : (1972) 2 WLR 429 (CA)] :
(All ER p. 1006d)
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―The law should not be seen to sit by limply, while
those who defy it go free, and those who seek its
protection lose hope.‖Courts have to ensure that accused persons are
punished and that the might or authority of the
State are not used to shield themselves or their
men. It should be ensured that they do not wield
such powers which under the Constitution has to
be held only in trust for the public and society at
large. If deficiency in investigation or prosecution
is visible or can be perceived by lifting the veil
trying to hide the realities or covering the obvious
deficiencies, courts have to deal with the same
with an iron hand appropriately within the
framework of law. It is as much the duty of the
prosecutor as of the court to ensure that full and
material facts are brought on record so that there
might not be miscarriage of justice. (See Shakila
Abdul Gafar Khan v. Vasant Raghunath
Dhoble [(2003) 7 SCC 749 : 2003 SCC (Cri)
1918] .)*****
61. In the case of a defective investigation the court
has to be circumspect in evaluating the evidence and
may have to adopt an active and analytical role to
ensure that truth is found by having recourse to Section
311 or at a later stage also resorting to Section 391
instead of throwing hands in the air in despair. It
would not be right in acquitting an accused person
solely on account of the defect; to do so would
tantamount to playing into the hands of the
investigating officer if the investigation is designedly
defective. (See Karnel Singhv. State of M.P. [(1995) 5
SCC 518 : 1995 SCC (Cri) 977] )
62. In Paras Yadav v. State of Bihar [(1999) 2 SCC
126 : 1999 SCC (Cri) 104 (para 8)] it was held that ifSignature Not Verified
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the lapse or omission is committed by the investigating
agency designedly or because of negligence, the
prosecution evidence is required to be examined
dehors such omissions to find out whether the said
evidence is reliable or not. The contaminated conduct
of officials should not stand in the way of courts
getting at the truth by having recourse to Sections 311,
391 of the Code and Section 165 of the Evidence Act at
the appropriate and relevant stages and evaluating the
entire evidence; otherwise the designed mischief would
be perpetuated with a premium to the offenders and
justice would not only be denied to the complainant
party but also made an ultimate casualty.
63. As was observed in Ram Bihari Yadav v. State of
Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085] if
primacy is given to such designed or negligent
investigation, to the omission or lapses by perfunctory
investigation or omissions, the faith and confidence of
the people would be shaken not only in the law-
enforcing agency but also in the administration of
justice in the hands of courts. The view was again
reiterated in Amar Singh v. Balwinder Singh [(2003) 2
SCC 518 : 2003 SCC (Cri) 641] .
*****
68. If one even cursorily glances through the records of
the case, one gets a feeling that the justice-delivery
system was being taken for a ride and literally allowed
to be abused, misused and mutilated by subterfuge. The
investigation appears to be perfunctory and anything
but impartial without any definite object of finding out
the truth and bringing to book those who were
responsible for the crime. The Public Prosecutor
appears to have acted more as a defence counsel than
one whose duty was to present the truth before the
Court. The Court in turn appeared to be a silent
spectator, mute to the manipulations and preferred to
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be indifferent to sacrilege being committed to justice.
The role of the State Government also leaves much to
be desired. One gets a feeling that there was really no
seriousness in the State’s approach in assailing the
trial court’s judgment. This is clearly indicated by the
fact that the first memorandum of appeal filed was an
apology for the grounds. A second amendment was
done, that too after this Court expressed its
unhappiness over the perfunctory manner in which the
appeal was presented and the challenge made. That
also was not the end of the matter. There was a
subsequent petition for amendment. All this sadly
reflects on the quality of determination exhibited by the
State and the nature of seriousness shown to pursue the
appeal. Criminal trials should not be reduced to be
mock trials or shadow-boxing or fixed trials. Judicial
criminal administration system must be kept clean and
beyond the reach of whimsical political wills or
agendas and properly insulated from discriminatory
standards or yardsticks of the type prohibited by the
mandate of the Constitution.
69. Those who are responsible for protecting life and
properties and ensuring that investigation is fair and
proper seem to have shown no real anxiety. Large
number of people had lost their lives. Whether the
accused persons were really assailants or not could
have been established by a fair and impartial
investigation. The modern-day ―Neros‖ were looking
elsewhere when Best Bakery and innocent children and
helpless women were burning, and were probably
deliberating how the perpetrators of the crime can be
saved or protected. Law and justice become flies in the
hands of these ―wanton boys‖. When fences start to
swallow the crops, no scope will be left for survival of
law and order or truth and justice. Public order as well
as public interest become martyrs and monuments.‖
(Emphasis supplied)
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50. We are of the opinion that the proceedings have been conducted in a
hasty manner.
51. The failure of the Investigating Agency as also the Ld. Additional
Sessions Judge cannot inure to the benefit of the accused. It is now trite law
that lapses or lacunae in investigation cannot be taken advantage of by the
accused. The Apex Court in a recent Judgment passed in the case of
Edakkandi Dineshan v. State of Kerala, (2025) 3 SCC 273, after placing
relying on several judgments on the same issue, has observed as under:-
―26. A cumulative reading of the entire evidence on
record suggests that the investigation has not taken
place in a proper and disciplined manner. There are
various areas where a proper investigation could have
strengthened its case. In Paras Yadav v. State of Bihar
[Paras Yadav v. State of Bihar, (1999) 2 SCC 126 :
1999 SCC (Cri) 104] , the Supreme Court observed as
under : (SCC p. 130, para 8)―8. … the lapse on the part of the investigating
officer should not be taken in favour of the
accused. It may be that such lapse is committed
designedly or because of negligence. Hence, the
prosecution evidence is required to be examined
dehors such omissions to find out whether the said
evidence is reliable or not. For this purpose, it
would be worthwhile to quote the following
observations of this Court from Ram Bihari Yadav
v. State of Bihar [Ram Bihari Yadav v. State of
Bihar, (1998) 4 SCC 517 : 1998 SCC (Cri) 1085]
: (SCC pp. 523-24, para 13)―13. … In such cases, the story of the prosecution
will have to be examined dehors such omissions
and contaminated conduct of the officials
otherwise the mischief which was deliberately
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denied to the complainant party and this would
obviously shake the confidence of the people not
merely in the law-enforcing agency but also in the
administration of justice.‖
27. Hence, the principle of law is crystal clear that on
the account of defective investigation the benefit will
not inure to the accused persons on that ground alone.
It is well within the domain of the courts to consider
the rest of the evidence which the prosecution has
gathered such as statement of the eyewitnesses,
medical report, etc. It has been a consistent stand of
this Court that the accused cannot claim acquittal on
the ground of faulty investigation done by the
prosecuting agency. As the version of eyewitnesses in
specifically naming the appellants have been consistent
throughout the trial, we find that there is enough
corroboration to drive home the guilt of the accused
persons. When the testimony of PW 1 Jitesh, PW 2 and
PW 4 is seen cumulatively, their versions can be seen
to be corroborating each other. All of them being
eyewitnesses, what is material to be seen is their stand
is consistent when they said that it was A-2 who was
responsible for inflicting blows on both the deceased. It
may not be out of place to mention that though the
unfortunate incident took place at midnight around 1
a.m., it was a full moon night and as such, it was not
pitch dark. This has also not been vehemently disputed
by the defence counsel. Hence, the version put forth by
the prosecution witnesses inspires confidence of this
Court. The specific role attributed by the prosecution
witnesses cannot be challenged on extraneous grounds
which have been raised by the defence. There is no
contradiction when it comes to assigning specific role
to the above accused. Admittedly, there was an enmity
between the witnesses as they were from different
political groups. Moreover, it can be seen from the
record that the accused and the witnesses were well
acquainted with each other as PW 1, PW 2 and PW 4
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had defected from CPI and had joined RSS. The
witnesses could have tried to implicate anyone had
they wished to take advantage of their past
acquaintance and recent rivalry.‖
(Emphasis supplied)
Requirement of re-trial
52. In light of the above findings, the conclusion of acquittal arrived at by
the Ld. Additional Sessions Judge cannot be sustained. This Court is
conscious of the bar on converting a finding of acquittal into one of
conviction in exercise of revisional powers in terms of Section 401(3) of the
CrPC. A conjoint reading of Sections 401 and 386 (a) of the CrPC provide
this Court with the power to direct further inquiry and retrial while dealing
with a judgment of acquittal in revisional jurisdiction. The exercise of such
powers is permissible in exceptional cases which inter alia reveal a manifest
error on a point of law resulting in flagrant miscarriage of justice. Reference
in this regard can be made to the decision of the Apex Court in K
Chinnaswamy Reddy v. State of Andhra Pradesh & Anr., (1963) 1 Cri LJ 8
which outlines the circumstances in which the power of directing retrial may
be exercised:-
―4. The extent of the jurisdiction of the High Court in
the matter of interfering in revision against an order of
acquittal has been considered by this Court on a
number of occasions. In D.
Stephens v. Nosibolla [1951 SCC 184 : (1951) SCR
284] this Court observed–
―The revisional jurisdiction conferred on the
High Court under Section 439 of the Code of
Criminal Procedure is not to be lightly exercised
when it is invoked by a private complainant
against an order of acquittal, against which theSignature Not Verified
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Government has a right of appeal under Section
417. It could be exercised only in exceptional
cases where the interests of public justice require
interference for the correction of a manifest
illegality or the prevention of a gross miscarriage
of justice.This jurisdiction is not ordinarily
invoked or used merely because the lower Court
has taken a wrong view of the law or
misappreciated the evidence on the record.‖
5. Again in Logendranath Jha v. Polailal Biswas [1951
SCC 856 : (1951) SCR 676] this Court observed–
―Though sub-section (1) of Section 439 of the
Criminal Procedure Code authorises the High
Court to exercise in its discretion any of the
powers conferred on a Court of appeal by Section
423, yet sub-section (4) specifically excludes the
power to ‗convert a finding of acquittal into one
of conviction’. This does not mean that in dealing
with a revision petition by a private party against
an order of acquittal, the High Court can in the
absence of any error on a point of law reappraise
the evidence and reverse the findings of facts on
which the acquittal was based, provided only it
stops short of finding the accused guilty and
passing sentence on him by ordering a retrial.‖
6. These two cases clearly lay down the limits of the
High Court’s jurisdiction to interfere with an order of
acquittal in revision; in particular, Logendranath Jha
case [1951 SCC 856 : (1951) SCR 676] stresses that it
is not open to a High Court to convert a finding of
acquittal into one of conviction in view of the
provisions of Section 439(4) and that the High Court
cannot do this even indirectly by ordering retrial. What
had happened in that case was that the High Court
reversed pure findings of facts based on the trial
court’s appreciation of evidence but formally complied
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with sub-section (4) by directing only a retrial of the
appellants without convicting them, and warned that
the court retrying the case should not be influenced by
any expression of opinion contained in the judgment of
the High Court. In that connection this Court observed
that there could be little doubt that the dice was loaded
against the appellants of that case and it might prove
difficult for any subordinate judicial officer dealing
with the case to put aside altogether the strong views
expressed in the judgment as to the credibility of the
prosecution witnesses and the circumstances of the
case in general.
7. It is true that it is open to a High Court in revision to
set aside an order of acquittal even at the instance of
private parties, though the State may not have thought
fit to appeal; but this jurisdiction should in our opinion
be exercised by the High Court only in exceptional
cases, when there is some glaring defect in the
procedure or there is a manifest error on a point of law
and consequently there has been a flagrant
miscarriage of justice. Sub-section (4) of Section 439
forbids a High Court from converting a finding of
acquittal into one of conviction and that makes it all
the more incumbent on the High Court to see that it
does not convert the finding of acquittal into one of
conviction by the indirect method of ordering retrial,
when it cannot itself directly convert a finding of
acquittal into a finding of conviction. This places
limitations on the power of the High Court to set aside
a finding of acquittal in revision and it is only in
exceptional cases that this power should be exercised.
It is not possible to lay down the criteria for
determining such exceptional cases which would cover
all contingencies. We may however indicate some
cases of this kind, which would in our opinion justify
the High Court in interfering with a finding of acquittal
in revision. These cases may be : where the trial court
has no jurisdiction to try the case but has still
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acquitted the accused, or where the trial court has
wrongly shut out evidence which the prosecution
wished to produce, or where the appeal court has
wrongly held evidence which was admitted by the trial
court to be inadmissible, or where material evidence
has been overlooked either by the trial court or by the
appeal court, or where the acquittal is based on a
compounding of the offence, which is invalid under the
law. These and other cases of similar nature can
properly be held to be cases of exceptional nature,
where the High Court can justifiably interfere with an
order of acquittal; and in such a case it is obvious that
it cannot be said that the High Court was doing
indirectly what it could not do directly in view of the
provisions of Section 439(4). We have therefore to see
whether the order of the High Court setting aside the
order of acquittal in this case can be upheld on these
principles.‖
(Emphasis supplied)
53. This Court is mindful of the fact that more than forty years have
passed since the date of commission of the offence. Ordinarily, a direction
of retrial is unwarranted if the time lag between the date of the offence and
the date of such direction is long, however, no straitjacket formula in this
regard can be employed. The requirement of ensuring that the interests of
justice are subserved must be kept at the forefront while considering a case
such as the present. Reference in this regard may be made to the decision of
the Apex Court in Jitendra Kumar Rode v. Union of India, (2024) 11 SCC
559. The relevant part of the judgment passed by the Apex Court in Jitendra
Kumar Rode (supra) is reproduced herein below:-
―31. In numerous judgments rendered by various High
Courts, a similar view to the effect that a conviction
cannot be upheld in the absence of the records of the
court below has been expressed. Taking note of SitaSignature Not Verified
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Ram [Sita Ram v. State of U.P., 1980 SCC OnLine All
531 : 1981 Cri LJ 65] , the time elapsed between the
occurrence of the offence and the appeal being finally
decided, these courts have held that in the absence of
essential documents such as the FIR or witness
statements, a retrial too cannot be said to be serving
the ends of justice. [Khalil Ahmad v. State of U.P.
[Khalil Ahmad v. State of U.P., 1986 SCC OnLine All
211] ; Vir Pal v. State of U.P. [Vir Pal v. State of U.P.,
1999 SCC OnLine All 1348] ; Hira Lal v. State of U.P.
[Hira Lal v. State of U.P., 1999 SCC OnLine All 1392]
and Bhunda v. State of U.P. [Bhunda v. State of U.P.,
2001 SCC OnLine All 864] ]*****
36. In the facts at hand, the alleged offence in question
was committed on 21.3.1995, and the judgment of the
Trial Court was delivered on 7.12.1999. More than 28
years have passed since the commission of the offence.
As already indicated, the relevant Trial Court record
has not been able to be reconstructed, despite the
efforts of the courts below. Hence, in our considered
view, as discussed above, ordering a retrial is not in
the interest of justice and will not serve any fruitful
purpose. The time elapsed must be taken into
consideration by the Court, and we may stress on that,
only after taking due note of and taking steps to abide
by the warning issued by this Court in Abhai Raj
Singh (supra), as was correctly done in Sita
Ram (supra).
37. …Therefore, in the considered view of this Court, it
is not within prudence to lay down a straightjacket
formula, we hold that non-compliance with the
mandate of the section, in certain cases contingent
upon specific facts and circumstances of the case,
would result in a violation of Article 21 of
the Constitution of India, which we find it to be so in
the instant case.‖
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(Emphasis supplied)
54. Along the same lines, we may also advert to the following extract
from the decision of the Apex Court in Zahira Habibulla H Sheikh &Anr. v.
State of Gujarat & Ors., (2004) 4 SCC 158:-
―52. Whether a retrial under Section 386 or taking up
of additional evidence under Section 391 is the proper
procedure will depend on the facts and circumstances
of each case for which no straitjacket formula of
universal and invariable application can be
formulated.
53. In the ultimate analysis whether it is a case covered
by Section 386 or Section 391 of the Code, the
underlying object which the court must keep in view is
the very reason for which the courts exist i.e. to find
out the truth and dispense justice impartially and
ensure also that the very process of courts are not
employed or utilized in a manner which give room to
unfairness or lend themselves to be used as instruments
of oppression and injustice.‖(Emphasis supplied)
55. The guiding factor in considering a plea for retrial is the demand for
justice. A Constitutional Court is required to strike a balance between the
rights of accused persons not to be subject to undue harassment at retrial,
and the rights of victims to a fair and impartial investigation and trial.
Echoing this sentiment, the Apex Court in Mohd Hussain @ Julfikar Ali v.
State (Government of NCT of Delhi), (2012) 9 SCC 408, albeit in a slightly
different context, observed as under:-
―41. The appellate court hearing a criminal appeal
from a judgment of conviction has power to order the
retrial of the accused under Section 386 of the Code.
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That is clear from the bare language of Section 386(b).
Though such power exists, it should not be exercised in
a routine manner. A de novo trial or retrial of the
accused should be ordered by the appellate court in
exceptional and rare cases and only when in the
opinion of the appellate court such course becomes
indispensable to avert failure of justice. Surely this
power cannot be used to allow the prosecution to
improve upon its case or fill up the lacuna. A retrial is
not the second trial; it is continuation of the same trial
and same prosecution. The guiding factor for retrial
must always be demand of justice. Obviously, the
exercise of power of retrial under Section 386(b) of the
Code, will depend on the facts and circumstances of
each case for which no straitjacket formula can be
formulated but the appeal court must closely keep in
view that while protecting the right of an accused to
fair trial and due process, the people who seek
protection of law do not lose hope in legal system and
the interests of the society are not altogether
overlooked.
*****
43. We have to consider now, whether the matter
requires to be remanded for a de novo trial in the facts
and the circumstances of the present case. The incident
is of 1997. It occurred in a public transport bus when
that bus was carrying passengers and stopped at a bus-
stand. The moment the bus stopped an explosion took
place inside the bus that ultimately resulted in death of
four persons and injury to twenty-four persons. The
nature of the incident and the circumstances in which it
occurred speak volume about the very grave nature of
offence. As a matter of fact, the appellant has been
charged for the offences under Sections 302/307 IPC
and Section 3 and, in the alternative, Section 4(b) of
the ES Act. It is true that the appellant has been in jail
since 9-3-1998 and it is more than 14 years since he
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was arrested and he has passed through mental agony
of death sentence and the retrial at this distance of time
shall prolong the culmination of the criminal case but
the question is whether these factors are sufficient for
the appellant’s acquittal and dismissal of indictment.
We think not.
44. It cannot be ignored that the offences with which
the appellant has been charged are of very serious
nature and if the prosecution succeeds and the
appellant is convicted under Section 302 IPC on
retrial, the sentence could be death or life
imprisonment. Section 302 IPC authorises the court to
punish the offender of murder with death or life
imprisonment. Gravity of the offences and the
criminality with which the appellant is charged are
important factors that need to be kept in mind, though
it is a fact that in the first instance the accused has
been denied due process. While having due
consideration to the appellant’s right, the nature of the
offence and its gravity, the impact of crime on the
society, more particularly the crime that has shaken
the public and resulted in death of four persons in a
public transport bus cannot be ignored and
overlooked. It is desirable that punishment should
follow offence as closely as possible. In an extremely
serious criminal case of the exceptional nature like the
present one, it would occasion in failure of justice if
the prosecution is not taken to the logical conclusion.
Justice is supreme. The retrial of the appellant, in our
opinion, in the facts and circumstances, is
indispensable. It is imperative that justice is secured
after providing the appellant with the legal practitioner
if he does not engage a lawyer of his choice.‖
(Emphasis supplied)
56. Similarly, in Zahira Habibulla H Sheikh & Anr. v. State of Gujarat &
Ors., (2004) 4 SCC 158, the Apex Court underscored the importance of
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striking a balance between the rights of accused vis-à-vis the rights of
victims, and outlined the concept of a fair trial in the following words:-
―36. The principles of rule of law and due process are
closely linked with human rights protection. Such
rights can be protected effectively when a citizen has
recourse to the courts of law. It has to be unmistakably
understood that a trial which is primarily aimed at
ascertaining the truth has to be fair to all concerned.
There can be no analytical, all-comprehensive or
exhaustive definition of the concept of a fair trial, and
it may have to be determined in seemingly infinite
variety of actual situations with the ultimate object in
mind viz. whether something that was done or said
either before or at the trial deprived the quality of
fairness to a degree where a miscarriage of justice has
resulted. It will not be correct to say that it is only the
accused who must be fairly dealt with. That would be
turning a Nelson’s eye to the needs of the society at
large and the victims or their family members and
relatives. Each one has an inbuilt right to be dealt with
fairly in a criminal trial. Denial of a fair trial is as
much injustice to the accused as is to the victim and the
society. Fair trial obviously would mean a trial before
an impartial judge, a fair prosecutor and atmosphere
of judicial calm. Fair trial means a trial in which bias
or prejudice for or against the accused, the witnesses,
or the cause which is being tried is eliminated. If the
witnesses get threatened or are forced to give false
evidence that also would not result in a fair trial. The
failure to hear material witnesses is certainly denial of
fair trial.
*****
38. A criminal trial is a judicial examination of the
issues in the case and its purpose is to arrive at a
judgment on an issue as to a fact or relevant facts
which may lead to the discovery of the fact issue andSignature Not Verified
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obtain proof of such facts at which the prosecution and
the accused have arrived by their pleadings; the
controlling question being the guilt or innocence of the
accused. Since the object is to mete out justice and to
convict the guilty and protect the innocent, the trial
should be a search for the truth and not a bout over
technicalities, and must be conducted under such rules
as will protect the innocent, and punish the guilty. The
proof of charge which has to be beyond reasonable
doubt must depend upon judicial evaluation of the
totality of the evidence, oral and circumstantial, and
not by an isolated scrutiny.
*****
39. Failure to accord fair hearing either to the accused
or the prosecution violates even minimum standards of
due process of law. It is inherent in the concept of due
process of law, that condemnation should be rendered
only after the trial in which the hearing is a real one,
not sham or a mere farce and pretence. Since the fair
hearing requires an opportunity to preserve the
process, it may be vitiated and violated by an
overhasty, stage-managed, tailored and partisan trial.
40. The fair trial for a criminal offence consists not
only in technical observance of the frame and forms of
law, but also in recognition and just application of its
principles in substance, to find out the truth and
prevent miscarriage of justice.
*****
49. …As reiterated supra, the ends of justice are not
satisfied only when the accused in a criminal case is
acquitted. The community acting through the State and
the Public Prosecutor is also entitled to justice. The
cause of the community deserves equal treatment at the
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hands of the court in the discharge of its judicial
functions.‖
(Emphasis supplied)
57. Keeping in mind the dicta of the Apex Court in the decisions cited
above, this Court is of the view that the present case undoubtedly falls
within the category of an „exceptional case‟ warranting setting aside of the
Judgment dated 28.05.1986 passed in SC No.11/1986 and consequent
direction for a retrial since the Ld. Additional Sessions Judge committed
several manifest errors of law as outlined in the preceding part of this
Judgment. These errors have resulted in miscarriage of justice which is
evident from the fact that a grave offence of murder and arson with
communal overtones has neither been investigated properly by the
Investigating Agency, nor tried in right stead by the Ld. Additional Sessions
Judge. Resultantly, the victims, including the wife and children of the
deceased Harbhajan Singh, have been deprived of their valuable
fundamental right under Article 21 to a fair investigation and trial which if
not rectified may result in a loss of hope in our legal system and
compromise the interests of society.
58. We have consciously proceeded with care and circumspection to
merely note bare facts concerning the incident which forms the subject
matter of Sessions Case 11/86 only insofar as the same are necessary for
proper adjudication of the present Revision Petition and to ascertain the
manifest errors in law committed by the Ld. Additional Sessions Judge.
None of our findings may be construed as an expression of opinion on the
merits of the case. The jurisdictional Trial Court is required to independently
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assess the evidence on record while deciding the case before it, uninfluenced
by any observations contained hereinabove.
Requirement of further investigation
59. As noted above, it appears that sufficient efforts were not made to
associate all natural witnesses during investigation, including the children of
the deceased who were present at the time of the incident, and/or any
neighbours, including the persons in whose house the Complainant and her
family had taken shelter after the mob had burnt their house down, as also
other public persons who may have been present. Similarly, no effort was
made to trace out the corpse of the deceased Harbhajan Singh, as also
articles stolen from the house of the Complainant.
60. We may advert to the deposition of PW3 SI AK Saxena, who served
as the Investigating Officer of the case from 26.02.1985, which reflects the
aforesaid position:-
“Q: Did you made any enquiry to find out if one Thakur was
residing in neighbourhood of that house or not?
Ans: I made no such enquiry.
I made enquiry from a lady residing in adjacent house she declined
to give name or particulars.”
61. The deposition of PW4 SI Arjun Singh, who served as the
Investigating Officer till 23.02.1985, is in similar vein:-
“I did not record statement of any one from the mohalla of the
place of incident.
…
It is wrong to suggest that I made enquiry from Thakur and others
and none corroborated the statement of Smt. Swaran Kaur…
…
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Q: Can you assign any reason for not recording the statement of
Thakur or his wife?
Ans: I made a search of both Thakur and his wife but they were
not available.
I do not remember the date on which I went to the house of Thakur
but I had gone there a number of times.”
62. As rightly stated by the Ld. Amicus Curiae, a bloodbath took place
after the assassination of late Ms. Indira Gandhi, and as a result of the
violence, widows, children and persons residing in the vicinity ran away for
their safety and took shelter elsewhere, which naturally meant they would
not have been readily available for investigation. That, however, would not
absolve the Investigating Agency of its duty to make sure that the best
evidence was gathered by taking recourse to the powers accorded under the
CrPC, so that any gaps in the evidence could not be misused subsequently at
trial by accused persons to get off the hook.
63. The fact that the investigations were conducted in a shoddy manner
has been well recognised in the various Committee Reports including the
Nanavati Commission Report, which led to directions for the investigation
to been trusted to the CBI for looking into the larger conspiracy resulting in
the incidents which took place on 01/02.11.1984 in the Raj Nagar area and
the murders of five Sikh persons (Kehar Singh, Gurpreet Singh,
Raghuvinder Singh, Narender Pal Singh & Kuldeep Singh), leading to the
conviction of six accused persons named in that case.
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64. In its Order dated 29.03.2017, this Court while invoking its
jurisdiction under Section 401 of the CrPC, had inter alia passed the
following directions:
―90. Given the manner in which the Delhi Police
appears to have conducted itself and the failure of the
prosecution in performing its basic functions, we are of
the view that independent assistance is needed by this
court for consideration of the case.
*****
93. We accordingly direct as follows:-
*****
(iii) Issue notice without process fee to private
respondent nos. 1 to 4 as well as the State – respondent
no.5 to show cause as to why this court not direct
fresh/further investigation into the complaint of Smt.
Swaran Kaur by an independent agency as the Central
Bureau of Investigation.‖
65. The power to order further investigation and of transferring
investigation to another agency vests in this Court in exercise of its
Constitutional powers under Article 226 as also its inherent powers under
Section 482 of the CrPC, as clarified by the Apex Court in Vinay Tyagi v.
Irshad Ali, (2013) 5 SCC 762, has observed as under:-
―43. At this stage, we may also state another well-
settled canon of the criminal jurisprudence that the
superior courts have the jurisdiction under Section 482
of the Code or even Article 226 of the Constitution of
India to direct ―further investigation‖, ―fresh‖ or ―de
novo‖ and even ―reinvestigation‖. ―Fresh‖, ―de
novo‖ and ―reinvestigation‖ are synonymous
expressions and their result in law would be the same.
The superior courts are even vested with the power ofSignature Not Verified
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transferring investigation from one agency to another,
provided the ends of justice so demand such action. Of
course, it is also a settled principle that this power has
to be exercised by the superior courts very sparingly
and with great circumspection.‖
(Emphasis supplied)
66. Further, it is trite law that this Court is entitled to exercise its inherent
powers while exercising revisional jurisdiction, as held by the Apex Court in
Popular Muthiah v. State, (2006) 7 SCC 296:-
―29. The High Court while, thus, exercising its
revisional or appellate power, may exercise its
inherent powers. Inherent power of the High Court can
be exercised, it is trite, both in relation to substantive
as also procedural matters.‖
(Emphasis supplied)
67. Given the obtaining fact situation and to aid the truth-finding exercise
which was given a go-by previously, we deem it fit to direct the CBI to
conduct further investigation in the present case. The CBI would have a free
hand in ascertaining the scope of such further investigation. We are
cognisant of the fact that over forty years have passed since the occurrence
took place. However, that by itself ought not to deter us from making the
present direction for further investigation, since the alternative would entail
turning a Nelson‟s eye to the needs of the society at large and the rights of
victims, including the Complainant and her children, to a comprehensive
free and fair investigation. The CBI is expected to carry out such further
investigation on a best effort basis to gather whatever evidence is available
today.
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Conclusion
68. We accordingly hold as under:-
a. The Judgment dated 28.05.1986 passed by the Ld. Additional
Sessions Judge, New Delhi in Sessions Case 11/86 acquitting
the accused is set aside.
b. The matter is remanded back to the jurisdictional Trial Court
for retrial.
c. The evidence recorded by the Ld. Additional Sessions Judge,
New Delhi would stand, however, it would be open for the
parties (Prosecution as well as the Defence) to adduce such
further evidence, as may be necessary, and recall or re-examine
such witnesses, as is considered necessary to meet the ends of
justice.
d. Given the vintage of incident, and the fact that over forty years
have passed since, the CBI is expected to conclude further
investigation on priority in an expeditious manner.
e. The Delhi Police would cooperate in the handover of case files
to the CBI for the purpose of further investigation.
f. The jurisdictional Trial Court must factor in the findings, if
any, of such further investigation.
g. To obviate any difficulties on account of non-availability of
witnesses and passage of time, the jurisdictional Trial Court
may take recourse to any and all available provisions under the
CrPC/BNSS and the Evidence Act/Bharatiya Sakshya
Adhiniyam, including for reconstruction of any remaining
records, if need be.
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h. Needless to say, the observations made above are only for the
purpose of deciding the present Revision Petition, and shall not
be construed by the jurisdictional Trial Court as an expression
of opinion on the merits of the case. The jurisdictional Trial
Court is required to independently assess the evidence on
record while deciding the case before it, uninfluenced by any
observations contained hereinabove.
i. The jurisdictional Trial Court is expected to conclude the entire
process of retrial as expeditiously as possible.
69. In view of the above, the present revision petition is disposed of,
along with pending application(s), if any.
70. 56. This Court expresses its appreciation for the invaluable
assistance rendered by Mr. Vivek Sood, learned Senior Counsel (Amicus
Curiae), and Mr. Vishwajeet Singh, learned Counsel, who has ably assisted
the learned Amicus Curiae and this Court.
SUBRAMONIUM PRASAD, J
HARISH VAIDYANATHAN SHANKAR, J
AUGUST 11, 2025
hsk
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